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The decision of the Authority follows:
49 FLRA No. 25
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, U.S. ARMY TRAINING CENTER
AND FORT JACKSON
FORT JACKSON, SOUTH CAROLINA
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 4, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two provisions regarding implementation of the Agency's Total Army Performance Evaluation System (TAPES) that were disapproved by the Agency head under section 7114(c) of the Statute.
Part of TAPES includes employee adherence to Army values and ethics. Those terms are defined by Army regulation as commitment, competence, candor, courage, loyalty, duty, selfless service, and integrity. Under the Army regulation, rating officials can insert comments on employee appraisals to identify the ways in which employees demonstrate their commitment to Army values and ethics.(1)
Provision 1 states that performance elements relating to ethics and personal values will not be discussed or referenced in any manner or on any document concerning a bargaining unit employee's evaluation. Provision 2 provides, among other things, for a delay in the implementation of Provision 1, for the parties to meet in 1995 to discuss the need to implement Provision 1, and for the Union to take certain actions with respect to that implementation. For the reasons set forth below, we find that the provisions are nonnegotiable.
II. Preliminary Matters
The Union raises several issues that involve the parties' obligation to bargain over the impact and implementation of the TAPES system. First, the Union maintains that the Agency did not bargain in good faith with regard to the values and ethics component of TAPES. According to the Union, the Agency head's disapproval of the two provisions "was based more on fact [sic] that it just did not like the outcome, rather than a bona fide conviction that the issue was nonnegotiable." Response at 6.
Under section 7117 of the Statute and section 2424.1 of the Authority's Rules and Regulations, the Authority will consider a petition for review of a negotiability issue only where the parties disagree over whether a proposed matter conflicts with law, rule, or regulation. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990). Issues pertaining to a party's bargaining obligation are appropriate for resolution in other proceedings. See id. See also American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). Accordingly, the Union's contention that the Agency failed to bargain in good faith over the disapproved provisions is not properly before us in this proceeding.
The Union also maintains that the values and ethics component of TAPES violates Public Law 92-261 and 29 C.F.R. § 1607.15. The Union explains that because values and ethics "can only be inferred from behavior and expressed attitudes . . . their validity cannot not [sic] be documented in accordance with the requirements" set forth in those authorities. Response at 8.(2) Additionally, the Union argues that the Agency's use of negative and positive comments relating to an employee's demonstrated adherence to the values and ethics component of TAPES is "in violation of its own regulations." Id.
Insofar as the Union claims that inserting comments relating to employees' adherence to values and ethics on the employees' performance appraisals violates law and regulation, those regulations are not before us. Those contentions relate to the lawfulness of the Agency's implementation of various aspects of TAPES. The contentions do not pertain to whether the specific proposals raised by the Union in this proceeding are consistent with law, rule, and regulation. As we stated above, only questions concerning a proposal's consistency with law, rule, and regulation are properly before the Authority in a negotiability proceeding.
III. Provision 1
The parties agree that "DA Ethics and Personal Values" elements that appear on appropriate Evaluation, Support, or Checklist documents will not--
(a) be discussed whatsoever;
(b) be referenced on any other document intended to reflect performance; and
(c) be referenced in any other manner when evaluating the performance of a NFFE Local 1214 bargaining unit employee.
Such exclusions will not influence the employee's overall performance evaluation.
[Emphasis in original.]
A. Positions of the Parties
The Agency argues that Provision 1 is nonnegotiable because it is inconsistent with management's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute. The Agency also claims that the proposal is inconsistent with management's right to discipline under section 7106(a)(2)(A) of the Statute.
With regard to the rights to direct employees and assign work, the Agency explains that the Department of the Army's values and ethics are critical components of the Agency's performance appraisal system and constitute "job[-]related characteristics that are key to the performance of all duties and responsibilities performed by Army civilians." Statement of Position at 5. The Agency adds that the values and ethics referenced in TAPES are not intended to address an employee's personal values or ethics, insofar as such matters are not related to that employee's position. Rather, the Agency asserts that the use of values and ethics "is intended to apply solely to performance/work related behavior." Id. at 10. Additionally, the Agency states that values and ethics cannot be used in calculating summary performance ratings.(3)
The Agency argues that the provision would prohibit it from discussing, or in any manner, referencing employee adherence to Army values and ethics on employee performance appraisals. As a result, the Agency claims that the provision directly interferes with management's right to determine which aspects of an employee's performance it will evaluate. In support, the Agency cites American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63, 68 (1992). The Agency asserts that the values criteria in TAPES is "a tool for evaluating the quality of the employees['] performance." Statement of Position at 7.
The Agency further states that the values and ethics criteria are intended to encourage successful behavior and performance and to discourage behavior or performance that is unacceptable. In this regard, the Agency argues that in National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705, 709 (1993), the Authority found that management's rights to direct employees and assign work extended to the establishment of performance standards that serve to encourage and reward successful performance and discourage unacceptable performance. According to the Agency, by prohibiting management from discussing and using the values and ethics component of TAPES, the provision would prevent the Agency from supervising and guiding its employees in the performance of their duties.
The Agency also argues that the provision is not procedural in nature because it is not limited to how the ethics and values standards will be applied, but, rather, "goes to the heart of the [A]gency's authority to establish performance standards and requirements." Statement of Position at 8.
Finally, the Agency argues that the provision interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute. In this regard, the Agency asserts that, by prohibiting the discussion of values and ethics and how they apply to employees, the Agency will be unable to discipline an employee for failing to abide by standards that it is unable to communicate and, further, that it will be prevented from developing materials and documentation that could be used as evidence in disciplining an employee.
The Union argues that Provision 1 does not directly interfere with management's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute because values and ethics do not constitute an integral component of TAPES and may not be used to determine an employee's performance rating. In this connection, the Union points to Agency documents that, in its view, state that the consideration of values and ethics is optional. The Union further asserts that because the Agency can include bona fide occupational values and ethics in an employee's job standards, the provision does not "prevent the agency from including values and ethics in performance standards were [sic] appropriate." Response at 6-7.
The Union also notes that the Agency originally intended to allow both positive and negative comments on an employee's appraisal with respect to that employee's adherence to the Agency's values and ethics. According to the Union, "negative comments would no doubt create the plausibility of an adverse impact resulting." Id. at 7. Consequently, the Union maintains that the provision may be considered as an appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
For the following reasons, we find that Provision 1 is nonnegotiable because it directly and excessively interferes with the Agency's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute. In light of this result, we need not address the Agency's additional contention that the provision is inconsistent with the right to discipline under section 7106(a)(2)(A) of the Statute.
1. The Provision Directly Interferes with Management's Rights to Direct Employees and Assign Work
Consistent with the Agency's explanation, we find that under TAPES the use of values and ethics is limited to assessing performance and work-related behavior.
The Authority has found that provisions restricting an agency's right to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 48 FLRA 129, 135 (1993) petition for review filed, No. 93-1676 (D.C. Cir. Oct. 6, 1993); See also National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 349 (1991). The provision in this case would preclude management from discussing or using the values and ethics component of TAPES when evaluating employee performance. Consequently, the provision would impose a substantive limitation on the Agency's ability to determine the content of its performance standards. As such, we find that the provision directly interferes with management's rights to direct employees and assign work. In reaching this result, we reject the Union's contention that the values and ethics component is not an integral part of the Agency's performance appraisal system. As we stated above, it is management, and not the Union, that determines the content of employee performance standards. Such determination includes the aspects of employee performance that warrant measurement.
2. The Provision Is Not an Appropriate Arrangement
In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Member Armendariz, concurring in part and dissenting in relevant part). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.
Even assuming Provision 1 is intended as an arrangement, we conclude that it is nonnegotiable because it would excessively interfere with the exercise of management's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute. In this regard, Provision 1 is designed, in part, to prevent the Agency from using the Army's values and ethics in appraising employee performance. As such, the provision would afford some protection to those employees who fail to adhere to the Army's values and ethics in the performance of their duties.
At the same time, however, the provision would prevent the Agency from using the Army's values and ethics when evaluating the performance of bargaining unit employees. Thus, Provision 1 sets forth a total and absolute ban not only on the Agency's ability to evaluate employees based on their adherence to the Army's ethical standards, but also on discussing the Agency's values and ethics with employees and referencing values and ethics in any performance-related documents. In our view, the burden imposed by the provision on the exercise of management's rights to direct employees and assign work outweighs the benefits afforded to employees. We also note that while the Union states that negative comments on an employee's appraisal could create an adverse effect, the Agency acknowledges that adherence to values and ethics is not calculated in assigning summary performance ratings. Thus, any negative effects from comments contained on an evaluation are minimized.
On balance, we conclude that the provision excessively interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute and that it does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See, for example, National Federation of Federal Employees, Local 858 and U.S. Department of Agriculture, Federal Crop Insurance Corporation, 48 FLRA 552, 556-57 (1993) (proposal that employees will not be rated on elements on which they have insufficient training or experience found to excessively interfere with the rights to direct employees and assign work).
IV. Provision 2
The [parties] agree:
1. To delay the implementation of Article 9 of the Total Army Performance Evaluation System [TAPES] Negotiated Agreement until the first workday in March 1995.1/
2. To meet on a mutually agreed upon date and time during January/February 1995 for the exclusive purpose of discussing and acting upon a Union retrospective as to whether the agreed upon delay period demonstrated a need to implement the subject article. Predicated on retrospective data, the Union may request to--
a. implement the subject article;
b. negotiate an additional delay necessitated by a lack of determinate data;
c. renegotiate the subject article, in whole or in part, in order to extenuate its impact; or
d. abrogate the subject article.
3. If the Union elects to exercise option a,2/ b or c above, the implementation date for a resultant agreement will not occur until the 30th calendar day after execution.
1/ The proposed amendment is solely intended to provide the Union an opportunity to make an informed decision--by utilization of empirical data--as to whether implementation of the subject article would be necessary or desirable.
2/ Option 2a will not require negotiation; as such, its execution date will be the date of the Union-Management meeting.
A. Positions of the Parties
The Agency states that its contentions regarding Provision 1 are applicable to Provision 2. The Agency also maintains that "if Provision 1 is declared nonnegotiable, Provision 2 would, likewise, be nonnegotiable." Statement of Position at 5.
The Union explains that Provision 2 is designed to give the parties an opportunity "to review retrospective data" in order to determine whether to implement Provision 1 or to negotiate something different. Response at 4. The Union states that if the Agency uses the values and ethics component "in a wrongful manner, then the union would have the option of addressing other alternatives." Id. at 7. The Union adds, however, that if the Agency's values and ethics component is used "in accordance with regulatory guidance, then the union would retract [P]rovision ." Id.
B. Analysis and Conclusions
For the following reasons, we find that Provision 2 is nonnegotiable.
Provision 2 suspends the effective date of Provision 1 until the first workday in March 1995. Provision 2 also provides that, prior to that date, the parties will meet to discuss the need to implement Provision 1 based on certain data. Depending on the results of the data, Provision 2 gives the Union several options, including the option to request implementation of Provision 1. Although Provision 2 states that the Union "may request" one of four enumerated options, we find, from a reading of the provision in its entirety, that the Union would have sole discretion to determine which option it wishes to select. Paragraph 3 of the provision speaks in terms of the Union's selection of one of three options. Further, footnote 1 explicitly states that the provision is solely intended to provide the Union with the opportunity to choose whether or not Provision 1 should be implemented. To the extent Provision 2 empowers the Union to require the Agency to implement Provision 1, we find, for the same reasons expressed in connection with Provision 1, that Provision 2 is nonnegotiable because it would directly and excessively interfere with the Agency's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B) of the Statute.
The petition for review is dismissed.
(If blank, the decision does not have footnotes.)
1. According to the regulation, suggesting new procedures to save time and money is an example of adherence to Army values and ethics.
2. The Union does not further explain the meaning of the cited law or regulation or the manner in which the addition of comments pertaining to values and ethics on employee performance appraisals would interfere with that law or regulation.
3. With its statement of position the Agency has submitted copies of TAPES and a pamphlet explaining TAPES. In both documents it is clear that values and ethics may not be used to derive a summary performance rating. However, narrative comments can be made on performance appraisals "to document positive aspects of [an employee's] contributions that do not necessarily result in work output." Statement of Position, Exhibit 2 at 50.